R v Tweeddale CA38/06 - [2006] NZCA 453

ORDER: NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND CA38/06

THE QUEEN

v

WAYNE PAUL TWEEDDALE

Hearing: 21 June 2006
Court: William Young P, Wild and Heath JJ Counsel: M D Downs for Crown
C P Brosnahan for Mr Tweeddale

Judgment: 7 September 2006 at 11am

JUDGMENT OF THE COURT

A Leave to appeal is granted. B The appeal is allowed.
CThe declaration that evidence gathered from the search was inadmissible is set aside. We order that the evidence gathered is admissible at trial.

DNot to be published in news media or on internet or other publicly accessible database until final disposition of trial. Publication in law
report or law digest permitted.

R V TWEEDDALE CA CA38/06 7 September 2006

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1] Mr Tweeddale was committed for trial in the District Court at Wanganui on three charges. All arise out of an incident that occurred on 11 November 2004 in the Celtic Arms Hotel.

[2] Mr Tweeddale is charged with assault with intent to avoid detection, unlawful possession of cannabis plant, unauthorised possession of a pistol (a pen gun) and unauthorised possession of a restricted weapon (a can of capsicum spray).

[3] The Solicitor-General seeks leave to appeal against a pre-trial ruling given by Judge Lance QC in the District Court in which he declared inadmissible physical evidence gathered following a search of Mr Tweeddale’s bag under s 18(3) of the Misuse of Drugs Act 1975 (the Act). Section 18(3) requires a police officer to have “reasonable ground for believing” that a person is in possession of a specified controlled drug before he or she may conduct an unwarranted search of the suspect.

[4] The primary issue in the District Court was the time at which the Court ought to assess whether a police officer had “reasonable ground for believing” that a person was in possession of a specified controlled drug, for the purpose of s 18(3). A subsidiary question was whether the search was, in any event, rendered lawful by Mr Tweeddale abandoning the relevant bag prior to the physical search being undertaken.

The facts

[5] At about 5.20pm on 11 November 2004, Sergeant Patterson received an anonymous telephone call advising that a known gang member was in possession of drugs at the Celtic Arms Hotel. The informer described what the Hells Angels gang

member was wearing and said that he was showing a number of male Maori the contents of a small bag he had in his possession.

[6] The informer told Sergeant Patterson that he believed the male Maori to be Mongrel Mob members. He said that he had overheard a conversation between the Hells Angels gang member and the male Maori about a drug deal.

[7] Sergeant Patterson confirmed that the informer did not tell her that he had seen…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tweeddale CA38/06

Details

AGLC: R v Tweeddale CA38/06 [2006] NZCA 453
Case: [2006] NZCA 453
Decision Date: 7 September 2006

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of CA38/06, The Queen v Wayne Paul Tweeddale was heard, with the appeal being allowed and the leave to appeal being granted. Mr Tweeddale was facing charges of assault with intent to avoid detection, unlawful possession of a cannabis plant, and unauthorised possession of a pen gun and a can of capsicum spray. The Crown sought to appeal a pre-trial ruling given by Judge Lance QC, who declared the evidence gathered from the search of Mr Tweeddale's bag inadmissible. The primary issue was the time at which the court should assess whether a police officer had "reasonable ground for believing" that a person was in possession of a specified controlled drug for the purpose of s 18(3) of the Misuse of Drugs Act 1975. The Court of Appeal determined that the search was saved by the application of Shaheed principles and that the evidence gathered was admissible at trial.

The court considered the factors surrounding the case, including the police officers acting in good faith, the tip provided to the police officers by an anonymous informer, and Mr Tweeddale seeking to escape detection by fleeing from the scene. The Court of Appeal found that the public interest was served by discouraging attempts by suspects to evade lawful search by physical means or by committing another offence. The real evidence gathered from the search was considered crucial to the charges laid against Mr Tweeddale.

The appeal was allowed, and the decision of the District Court Judge to rule the evidence inadmissible was set aside. The evidence gathered from the search of Mr Tweeddale's bag was ordered to be admissible at trial.

Orders